HomeMy WebLinkAbout08-1117MICHAEL L. BANGS, ESQUIRE
I.D. NO. 41263
429 SOUTH 18TH STREET
CAMP HILL, PA 17011
(717) 730-7310
HEMPT BROS., INC.,
Plaintiff
VS.
W. G. TOMKO, INC. and
WESTERN SURETY COMPANY,
Defendants
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2008 - 1111 Civi I lean
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by attorney and filing in writing with the Court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the Court
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPERS TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
MICHAEL L. BANGS, ESQUIRE
I.D. NO. 41263
429 SOUTH 18TH STREET
CAMP HILL, PA 17011
(717) 730-7310
ATTORNEY FOR PLAINTIFF
HEMPT BROS., INC., )
Plaintiff )
vs. )
W. G. TOMKO, INC. and )
WESTERN SURETY COMPANY, )
Defendants )
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2008 - 1117 6t4;<J
JURY TRIAL DEMANDED
COMPLAINT
AND NOW comes the Plaintiff, Hempt Bros., Inc., by and through its attorney, Michael
L. Bangs, Esquire, and files the following Complaint:
1. Plaintiff, Hempt Bros., Inc., is a Pennsylvania corporation with its principal place of
business at 205 Creek Road, Camp Hill, Cumberland County, Pennsylvania (hereinafter
"Hempt").
2. Defendant, W. G. Tomko, Inc., is a Pennsylvania corporation with its principal place
of business at 2559 Route 88, Finleyville, Washington County, Pennsylvania (hereinafter
"Tomko").
3. Defendant, Western Surety Company, is an insurance company that operates or does
business in Pennsylvania with its principal place of business at U.S. Steel Tower, 600 Grant,
Suite 500, Pittsburgh, Allegheny County, Pennsylvania (hereinafter "Surety")
4. Tomko was a subcontractor on a construction project with the Pennsylvania Turnpike
Commission for modifications and improvements to the Gettysburg Pike Toll Plaza in
Cumberland County, Pennsylvania (hereinafter "Project")
1
5. Hempt was the general contractor on the Project and hired Tomko to perform certain
work as a subcontractor pursuant to an agreement dated December 14, 2005 ("Agreement")
which is attached hereto and marked as Exhibit A.
6. The Agreement was a unit price agreement whereby Hempt agreed to pay Tomko the
unit price as indicated for actual quantities of work performed on the Project.
7. Surety provided a certain performance bond ("Bond") to Tomko in accordance with
the terms and conditions of the Agreement whereby Surety guaranteed Tomko's performance on
the Project. Attached hereto and marked as Exhibit B is a true and correct copy of the Bond.
COUNTI
HEMPT BROS., INC., vs. W. G. TOMKO INC.
BREACH OF CONTRACT
8. Paragraphs 1 through 7 are incorporated herein by reference as if more fully set forth.
9. Tomko, pursuant to the terms of the Agreement, agreed to maintain a progress
schedule as set forth by the Pennsylvania Turnpike Commission and as deemed necessary by
Hempt for the fulfillment of its obligations for each line item of work contemplated under the
Agreement.
10. Tomko was advised on numerous occasions by Hempt that it was not maintaining the
Project schedule and that it was subjecting itself to potential liquidated damages if those were
assessed against Hempt.
11. Despite the repeated contacts by Hempt to Tomko to maintain the schedule, Tomko
failed or refused to maintain the schedule as deemed necessary by Hempt for fulfillment of its
obligations under the Agreement.
2
12. On or about October 20, 2006, Hempt notified Tomko that Hempt would complete
certain line items of Tomko under the Agreement in order to maintain the schedule acceptable to
the Pennsylvania Turnpike Commission.
13. Hempt was required to complete the various line items under the Agreement solely
because of Tomko's failure to maintain the schedule in accordance with the terms of the
Agreement.
14. The line items of the Agreement completed by Hempt were as follow:
A. Line Item 2000-0022 - Water Meter Pit;
B. Line Item 2601-0500 - PVC Pipe 6" Sanitary Sewer;
C. Line Item 2605-1501 - Sanitary Manhole;
D. Line Item 2000-0021 - 4" Water Line;
E. Line Item 2000-0020 - 8" Water Line.
Hempt incurred various costs for work and material to complete these line items.
15. Tomko breached the Agreement with Hempt by its failure to maintain the schedule
and complete all of its work under the terms of the Agreement.
16. As a result of the breach of the Agreement by Tomko, Hempt incurred damages to
complete Line Item 2000-0022 in the amount of $13,424.22.
17. As a result of the breach of the Agreement by Tomko, Hempt incurred damages to
complete Line Items 2605-1501; 2601-0500; 2000-0021, and 2000-0020 in the amount of
$28,268.83.
3
18. Hempt also incurred additional damages from Tomko's breach of the Agreement
which were costs for blasting the pipe trench so that Line Item 2601-0500 could be completed in
the amount of $8,250.00.
19. The blasting of the pipe trench for Line Item 2601-0500 was the sole responsibility
of Tomko.
20. Hempt incurred other damages as a result of the breach of the Agreement by Tomko.
21. Hempt was required to install a temporary holding tank and provide ongoing
pumping for the Pennsylvania Turnpike Commission so that the individuals in the toll station had
a bathroom and running water.
22. Tomko breached the agreement with Hempt by failing to keep the sanitary facilities
operational and/or providing temporary sanitary facilities for the use of the Turnpike
Commissions' personnel per the terms of the Agreement.
23. As a result of the breach of the Agreement, Hempt incurred damages in the amount
of $17,511.89 which costs include the maintenance of a temporary holding tank installation and
ongoing pumping so that the Turnpike Commission employees had temporary sanitary facilities.
24. Tomko had a responsibility under the terms of the Agreement to keep the areas in
which it operated in a condition acceptable to contractor.
25. Hempt had to incur clean up costs on various areas of the Project as a direct result of
Tomko's failure to clean up those areas which were left in an unacceptable state by Tomko.
26. The damages incurred by Hempt for clean up of various areas left in an unacceptable
state by Tomko was $6,800.65.
27. These damages which were incurred by Hempt for clean up costs were the direct
result of the breach of the Agreement by Tomko.
4
28. Tomko also breached the Agreement when it removed and destroyed a fence on the
Project and failed or refused to reinstall that fence after work was completed in that area.
29. Hempt is required under the terms of its contract with the Pennsylvania Turnpike
Commission to replace the fence destroyed by Tomko.
30. Hempt has obtained estimates for the cost of replacement of the fence and that
estimate is $20,814.60.
31. The damages incurred by Hempt for replacement of the fence were due solely by
Tomko's destruction of the fence at the commencement of the Project and failure to reinstall the
fence at its completion.
32. Tomko has also breached the Agreement by its failure to complete the water line
marker installation in accordance with the terms of the Agreement.
33. Hempt will have to complete the water line marker installation in order to satisfy its
requirements under its contract with the Pennsylvania Turnpike Commission.
34. Hempt estimates the costs to complete the water line marker installation to be in the
amount of $4,000.00.
35. Hempt has been damaged in the amount of $4,000.00 as a result of Tomko's failure
to return and complete the water line marker installation in accordance with the terms and
conditions of the Agreement.
36. The total damages incurred by Hempt as a result of the various breaches of the
Agreement by Tomko equal $99,070.19.
37. Hempt has withheld $26,060.00 from Tomko which it has applied towards the
damages incurred by Hempt as a result of the various breaches of the Agreement by Tomko.
38. The total damages now due and owing to Hempt by Tomko is $73,010.19.
39. Hempt has made demand upon Tomko and Tomko has failed or refused to pay the
outstanding damages due and owing.
WHEREFORE, Hempt demands judgment against W. G. Tomko, Inc., in the amount of
$73,010.19 plus interest plus costs of suit.
COUNT II
HEMPT BROS.. INC. vs. WESTERN SURETY COMPANY
BOND CLAIM
40. Paragraphs 1 through 39 are incorporated herein by reference as if more fully set
forth.
41. Under the terms and conditions of the performance bond (Exhibit B), Surety assumed
all obligations of Tomko under the Agreement.
42. As a result of Tomko's breach of the Agreement as outlined in Count I of this
Complaint, Hempt incurred various damages to complete Tomko's work under the Agreement.
43. Surety is obligated to Hempt to reimburse Hempt for any and all costs it incurred to
complete Tomko's work as a result of Tomko's breach of the Agreement.
44. Hempt has also incurred additional costs and attorney's fees as a result of Tomko's
breach of the Agreement.
45. The damages incurred by Hempt as a result of the breach of the Agreement by
Tomko, which Surety is obligated to pay, is $73,010.19.
46. Surety is also obligated to pay Hempt any and all costs incurred and its attorney's
fees which are incurred as a result of the breach of the Agreement.
6
WHEREFORE, Hempt demands judgment against Western Surety Company in the
amount of $73,010.19, plus payment of Hempt's attorney's fees, plus costs of suit.
Respectfully submitted,
MIC AEL L. BANGS (I. o. 41263)
Attorney for Plaintiff
429 South 18th Street
Camp Hill, PA 17011
(717) 730-7310
7
VERIFICATION
MAX J. HEMPT, being duly sworn according to law, deposes and says that he is the
Vice President of Hempt Bros., Inc., a Pennsylvania corporation, the Plaintiff herein, and that as
such Vice President, he is authorized to make this Verification on its behalf and that the facts set
forth in the foregoing Complaint are true and correct to the best of his knowledge, information
and belief.
MAX J. HEMPT
EXHIBIT A
AGREEMENT
THIS AGREEMENT, made this ItkIt day ofbec X' , 2005, by and between
HEMPT BROS., LNC. (hereinafter "Contractor"), a Pennsylvania Corporation with
principal offices at 205 Creek Road, Camp Hill, Pe wylvaxaia 17011 and W_G. Tonxko,
Incorporated (hereinafter "Subcontractor"), with pri cipal offices at 2559 Route 88,
Finleyville, Penxisylvwia 15332.
WIT IESSETH
WHEREAS, Contractor has entered into a Contract with the Pennsylvania Turnpike
Commission, for Modifiicatiow and Improvements to the Gettysburg Pike Toll Plaza,
Milepost 236.22, Cumberland County, Pennsylvania, Contract No. 98-068-RX85-C,
hereinafter referred to as "The PA Contract", and
WHEREAS, Contractor and Subcontractor desire to enter into a written subcontract
whereunder Subcontractor will perform certm items Of work included in PA. Contract for a
consideration to be paid by Contractor as set forth herein_
NOW, THEREFORE, The Contractor and Subcontractor, for the consideration
herein recited, and each with the intent to be legally bound, hereby agree as follows.
1. The aforementioned "WHEREASES" are incorporated herein by this
reference-
2. Subcontractor will furnish all labor, supervision, equipment, tools, materials
services, and otlxer 01in necess
gs ary to complete and will complete the items of work
listed in Schedule ..N' in acc0r&nce with the PA. Contract. All terms of the
rMINNl of U7/ 1 tin. 1 11 Vl iUU-w 111w + sun I uu .?.,.,??? ? .. ,.....,
aforementioned documents are binding on Subcontractor- Said documents include (but
are not limited to) the following acts and order with which Contmetor will comply-
A. Provisions for Commonwealth contracts concearning the Americans with
Disabilities Acct.
B. Contractor responsibility provisions for Commonwealth contracts.
C. Equal Employment OWrtunity, including but not limited to, Executive
Order 11246 in its eadrety.
D. Minority business and women business enterprise participation
requirements.
E- Offset provisions for Commonwealth contracts.
F. Commonwealth nondiscrimination clause:.
G. Commonwealth contractor integrity proviisiow-
I The Contractor will pay the Subcontractor the unit prices set forth in
Schedule "A", attached hereto and made a part of this A greenient.
4. Subcontractor and subcontractor's subcontractors will obtain, pay for, and
maintain during the life of the contiCa % Workmen's Compensation, Public Liability and
Property Damage Insurance, wd other Casualty Insurance in the limit-, as follows:
Certificates of Insurance shall be provided to Cozitractor, naming Contractor as an
additional insured, for public liability, property damage, and automobile liability
coverages but only with respect to acts or omissions of the Subcontractor or its Sub-
Page 2
I IUMPl VI U.T
subcontractor. General Liability limits should not be less than $1,040,000 each
occurrence and $2,000,000 aggregate. Automobile. Liability limit should not be less
than $1,OOO,000 each occurrence.
S. Subcontractor shall indenni fy, defend, and hold harmless the Contractor, the
State of Pennsylvania, sad all of their officers, agents, and employees from and against
all loss or liability for or on account of any injury (including death) or damage received
or sustained by any person or persons or to injury to or destruction of tangible property
including the loss of use resulting therefrom, by reason of any act or omission, whether
negligent or otherwise, on, the part of the Subcontractor, or any employee, agent, or
invitee of Subcontractor, but only to the extent caused in whole or in part by the act or
omission of Subcontractor or its Sub-subcontractor.
In the event that any claim for or on account of any injury (including death) or damage
received or sustained by any person or persons or on account of damage to or
destruction of tangible property is made against Contractor, or the State of
Pennsylvania, as a result of any act or omission by the Subcontractor, any employee,
agent, or invitee of Subcontractor, in the course of performing its responsibilities under
the terms of this Contract, Subcontractor in addition to the indemnification provision
described herein, is responsible for any and all costs incurred by Contractor to defend
against the clai me said, cost to include but not be limited to Contractor's attorney's fetes.
The indemnification obligation set forth herein shall not be limited in my way by any
limtitatiou on the type of damages, compensation or benefits payable by or for the
Subcontractor under Worker's or Workmen's Compensation Act, or other employee
benefit acts.
Nothing in this agreement shall be construed as constituting Subcontractor as othim than
an independent Subcontractor of the Contractor, and the Subcontractor shall be and
Page 3
fIGI11JL 131 Ua I ARA• I I I IU IUUJJ
remain fully responsible for any loss or damage by Subcontractor or by Subcontractor's
officers, agents, employees, or subcontractors-
6. Subcontractor will famish Contractor a Performance Bond in a penal sum
equal to IM of the amount of this Agreement conditioned that Subcontractor shall,
well and truly and in a maimer satisfactory to Contractor 2md to the Pennsylvania
Turnpike Con=Jssion, complete the work contracted for herein, and shall save
harmless Contractor and the State of Pennsylvania from any expense mi curred through
the failure of Subcontractor to complete the work as specified, and from any damages
arising out of the vets or omissions of Subcontractor, or Subcontractor's officers,
agents, employees, or subcontractors. Subcontractor will also furnish to Contractor an
additional Payment Bond for Labor and Materials, covering the prompt payment in full
for utility services, materials, rental equipment, and labor furnished in the prosecutions
of the work contemplated by this Agreement, which bond shall also be in a penal sum
equal to 100% of the amount of this Agreement, plus all applicable change orders or
additional work performed under this Agreement.
Both bonds must also be executed by a corporate surety satisfactory to Contractor. Tlae
same surety must execute bath bonds, and should any surety upon such bonds become
unsatisfactory to Contractor, Subcontractor must promptly furnish such additional
secinity as may be required from time to time by Contractor to protect the interests of
Contractor, and of persons, firms, or corporations A misbing utility services, materials,
rental equipment, or labor in the prosecution of the work contemplated by this
Agreement
7. The Subcontractor is solely responsible for the health and safety of its
employees, agents, subeont?racton on and adjacent to the work site, In performance of
this subcontract, the Subcontractor shall comply with all applicable federal, state, and
local laws governing safety health, and sanitation (23 CPR. 635). Furthermore,
Page 4
Subcontractor will comply with all terms and conditions of Contractor's safety policy
that Subcontractor warrants it has independently investigated and unde=rstands (a copy
of said safety policy is on file at the Contractor's office and is available upon request)
The Subcontractor shall provide all safeguards, safety devices and protective egtupment
and take any other needed actions as it d,etew?ines, or as the Contractor may detertnine,
to be reasonably necessary to protect the life and health of its employees on the job and
the safety of the public and to protect property in connection with the performance of
the work covered by this Subcontract_
The Subcontractor shall not pemt arty employee, Mi performance of the Contract, to
work in surroundings or under conditions which are unsanitary, hazardous or dangerous
to his/her health or safety, as determined wader Construction Safety and Health
Standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with
Section 107 of the Contract Work Hours and safety Standards Act (40 U.S.C. 333).
The Subcontractor shall report within one (1) day to the Contractor any injuries to any
of the Subcontractors' employees including any irJuries sustained by an employee of
the Subcontractor's subcontractors- In addition, the appropriate OSHA form or
equivalent and an accident mvezstigation report shall be provided to the Contractor W the
event of an injury to an employee employed under the Subcontractor.
As an expert in the Subcontractor's field of work, the Subcontractor's supervisor and
safety personnel have sole control over all requirements for doing; the work safely, and
the Contractor is not responsible in any manner for the safety of the Subcontractor's
work,. In the event the Contractor receives a penalty firm OSHA as a result of a
violation of OSHA standards by the Subcontractor and the Contractor is cited as a result
of the violation of OSHA standards by the Subcontractor, Subcontractor agrees to
protect, defend, indemnify and hold harmless Contractor from the imposition of any
fines and/or penalties by OSHA.
Page 5
.1
Should the Subcontractor fail to correct unsafe procedures, acts, or conditions within
twenty-four (24) hours of notification by the Contractor or any public authority,
Contractor may (but has, not contractual obligation to do so) correct the unsafe practice
and back charge the Subcontractor for these costs plus ten percent (10%) for overhead,
ten percent (10%) for profit and twenty percent (20%) for a "safety premium." This
specifically includes but is not limited to the clean up of Subcontractor's comtruction
debris and the replacement of standard railings or barricades removed by
Subcontractor's employees. Conditions that constitute 'imminent danger' to any
employee will result in immediate stoppage of work- No extension of time or additional
compensation will be granted as a result of any stop order so issued. Repeated failure to
correct unmafe practices will result in the default and termination of this subcontract.
& Subcontractor will pay the prevailing minimum wage rates as deterrnioted for
this project as outlined in the wage determinations included in the contract documents.
These labor rates are attached to and are a part of this Agreement.
9. Subcontractor will pay all payroll times, etc. that are required of it and will
fumi,sh Contractor with three (3) certified copies of payroll and other certifications as
may be required by Contractor and the Pennsylvania Turnpike Commission.
X0. Subcontractor shall maintain the progress schedule as set forth by the
Pennsylvania Turnpike Commission, and as deemed necessary by Contractor for the
Mfilhment of the obligations for adjacent and subsequent items of work.
11_ Subcontractor will negotiate, together with Contractor, to have all utilities
and obstructions removed from or relocated within the construction areas; provided,
however, that nothing berew contained shall make Contractor liable to Subcontractor
for any delays or hindrances, regardless of duration or extent, caused by the failure of
Page 6
the Pennsylvania Turnpike Commission or the owners of structures (including public
utility facilities) on, under, or over the project to adjust, remove, or relocate such
structures. In.the event that Subcontractor encounters such delays or bindrances,
prompt written notice thereof shalt be given to Contractor.
12. Subcontractor shall make no claim for extra or additional work unless the
same shall be done pursuant to a written order executed by Albert E. Tompkins, Jr-,
General Superintendent of Contractor, or by such other person as Contractor shall
designate in writing.
13. Subcontractor will give prompt written notice to Contractor of any and all
matters or occurrences that may give rise to claims by Subcontractor against Contractor,
or by Contractor against the Petmrsylvania Turnpike Commission, or to back charges by
said Cortimission against Contractor, and such notice shall in all instances be given in
sufficient time to enable Contractor to give such timely notice to the said Commission
as is necessary to preserve Contractoes rights as against said Commission and the State
of Pewsylvanita.
14. Subcontractor will cooperate with Contractor in, and share equitably with
Contractor, the expense (including, but not limited to, fees for legal and accounting
services) of negotiations with the Pennsylvania Turnpike Commission and the
prosecution of any proceedings before the Pe ylvania Board of Arbitration of Claims
(including subsequent appeals therefrom) which involve the work contemplated by this
Agreement Subcontractor fwrthe7r agrees to be bound by the final decision of said
Board (or of any court to which an appeal therefrom may be taken) with respect to any
and all matters related to such work.
15. Any controversy, claim, or dispute not refbrable for decision to the
Pennsylvania Board of Axbitration of claims pursuant to Paragraph 13 of this
Page '7
Agreement, and arising out of this Agreement, shall be resolved by arbitration in
accordance with the rules and regWations of the American Arbitration Association and
the decision (including awards and allocation of costs) of the arbitrator, or a majority of
them as the case may be, shall be final and binding upon the parties. Judgment upozr the
award thus rendered may be entered in any court having jurisdiction.
16. Subcontractor shall not sell, transfer, subcontract, or assign any benefit or
obligation created by this Agreement, unless the prior written consent to Contractor has
been, obtained.
17, Subcontractor will leave all areas in which it operated in a condition
acceptable to Contractor and the Pennsylvania. Turnpike Commission.
18. Subeontmctur acknowledges that it has had ample opportunity to review and
to participate in the foninulation of the provisions of this Agreement and that this
Agreement shall not be construed against either party hereto as the party preparing the
same.
19. This Agreement, and the contractual documents referred to herein, constitute
the entire agreement between Contractor and Subcontractor pertaining to the subject
matter hereof, and supersede. all prior and contemporaneous agreements of the parties in
connection therewith. The rights and liabilities of the parties shaft inime to and bind
their successors and assigns. No change to or attempted waiver of any provision of this
Agreement shall be binding upon any party hereto unless in writing and signed by the
party against which such charge or waiver is sought to be enforced_
20. In the event that the Pemsylvama Turnpike Commission does not approve
Subcontractor as a subcontractor for the work contemplated under this Agreement,
Contractor sha111tam the right to tonnizyate this Agreement_
Wage 8
I IVIII{.l W1 -
21. Contractor may terminate this Agreement due to delays or interruptions by
Subcontractor that may impede the progress or completion of this project. Should
Contractor thus terminate this Agreement it may complete the work remaining to be
performed by Subcontractor under this Agreement, using either Contractof s own forces
or such other subcontractor or subcontractors as the Contractor may deem most
expedient, and any loss, cost, or expense resulting therefrom shall be, charged to
Subcontractor and against any balance than or thereafter due to Subcontractor, and if
any deficiency shall exist between the uMaid balance of this Agreement and amount
paid to complete said work, Subcontractor shall, upon demand, pay the amount paid to
complete said work.
22. Payments for work completed will be -made to Subcontractor within seven
(7) days afber receipt of payment of current estimates by Contractor.
23. If, pursuant to the provisions of the PA Contract, changes or modifications
result in a decrease or increase in unit prices paid by said Commission to Contractor for
work contemplated by this Agreement, the uu%t prices set forth in this Agreement shall
be decreased or increased proportionately.
24. Prior to fmal payment to Subcontractor, . Subcontractor shall fLunish
Contractor with evidence, in the form of ce i cation, that full payment has been made
for all utility services, materials, rental equipment, and labor furnished in the
prosecution of the work contemplated by this .Agreement.
25. Contractor will provide access. on the right-of-way where necessary for
Subcontractor.
Page 9
11V111F.1 LJl V.3 t ??.n ? 1 ? .v •uvvv .?v. • ?..... .... ..??.... ?._ . ???
26. Contractor will place signs as required at limits of work and working area,
etc.,. SubcoAtractor will provide the necessary protection of its own work area.
27. Specific reference bas been made to some of the PA Contract documents;
said reference is not to be intmpreted as excluding those not mentioned.
28. This Agreement shall be governed by the laws of the Commonwealth, of
Pennsyiva nita_
WITNESS OUR HANDS AND SEAS, as subscribed hereto on the date fast mentioued
above_
.ATTEST: lEWT EROS., INC.
Gerald L Hein S tS ?
1VIax T. ?Iempt, Executive ?%xce President
f7 k 1,r-?ri
W.G. T ,1NCOIt71tATE1)
r 4' ?
SUM A. WASWWlm JR
-PRE
I" 7VIJI MCE
SECRETART
Page 10
'-w, - -
Item umber DescdILUon
2204-0150
2350-0121
4205-0289
2601-0500
2601-0501
.2601-0502
2601-0503
46010756
4601-0757
2605-1501
2605-1502
2000-0020
20000021
2000-0022
2000-0023
2000-0025
2000-00261
2001-0020
2000-0015
SCHEMgeE A
Quantity
& Unit
Class 4 Excavation V, 224.00 CX
Subbase (No. 2,A) ?450.W TN
Screening Umestone Sand ? 100.00 CY
Poly Chloride Pipe V1,571.00 LF
6" Sanitary Sewer
Testing Sanitary Sewer ;11.00 LS
4" PVC Sleeve for Gas /180.00 FT
1F'ipisag
16" PVC Sleeve Water and V310.00 FT
Sanitary
16" Steel Boring Casing V 150.00 FT
6" Sanitary
24" Steel Boring Casing /150-00 FT
4' and 8" Water
Sanitary Manholes 7.00 EA
Air Release Manhole t 1.00 EA
8" Water Service X,390.00 L1~
4" Water Service L/1,570-00 LF
Water Meter Pit "1.00 EA.
Fire Hydrant X1.00 EA_
Aix Release Valve S" YI.00 EA.
Air Release Valve 4" /1.00 EA.
Glass C Cement Concrete .112.00 CY
Septic Tank and Septic Drain ,
,/ 1.00 LS
Field Removal
TOTAL
Unit
Pfice
28.00
23.00
39-00
65.00
1,000.00
8.00
42.00
387.00
498.00
2,750.00
5,000.00
.48.00
42.00
23,500.00
3,200.00
4,000.00
3,800.00
300.00
3,000.00
Total
6,272.00
10,350.00
3,800.00
102,115.00
1,000.00
1,440.00
13,020.00
58,050.00
74,700.00
19,250.00
5,000.00
66,720.00
65,940.00
23,500.00
3,200.00
4,000.00
3,800.00
33,600.00
3,000.00
$498,757.00
Continued Next Page
Schedule A
Page 2
I Continued. from Previous Fagg
I Notes_
I - All material and vrorkmanship must comply with applicable plans amd
specifications and be acceptable to the owner.
2. Terms and conditions of attached quotation apply.
3. Subcontractor will be xetmbursed for actual cost of bonds, unless
otherwise noted or agreed.
4. Quantities are approximate. Field conditions win determine actual
quantities needed.
*** HEWT BROS., INC. IS AN EQUAL OPPORTUNTIY EMPLOYER, ***
W.G. Too, Inc.
2559 Route 88
Fiul"lle, PA 15332
724-348-2000
724-348-7001 Fax
7080 - 5;-?«
Pennsylvania Turnpike Commission
Contract No. 98-068-185-C
MP 236.22, Cumberland County
Gettysburg Pike Toll Plazaf%te rchange
HBx Project -No. 844
EXHIBIT B
10
r
PERFORMANCE BOND
(Subcontract)
KNOW ALL MEN BY THESE PRESENTS, That W.G. Tcmko, Incorporated
2559 Route 88, Finleyville, PA 15332
(hereinafter called the "Principal"), as Principal and Western Surety Ccmpany
U.S. Steel Tower, 600 Grant Street, Suite 500, Pittsburgh, PA 15219
a corporation organized and existing under the laws of the State of South Dakota
(hereinafter called the "Surety"), as Surety, are held and firmly bound unto Hmpt Bros., Inc.
205 Creek Road, PA Box 278, Camp Hill, PA 17001
(hereinafter called the "Obligee"), in the sum of Four Hundred Ninety Eight Thousand Seven Hundred Fifty
Seven and no/100
Dollars
($ 498,757.00 ), for the payment of which sum well and truly to be made, the said Principal and Surety
bind themselves, and their respective heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Obligee has been awarded a contract (hereinafter called the "Prime Contract"), by
Pennsylvania Turnpike Commission
for Contract No. 98-068-RX85-C Plumbing Construction for the Gettysburg Pike Interchange
%dification and Expansion of the Toll Plaza
and;
WHEREAS, the Principal has entered into a written Subcontract with the Obligee, dated
to perform, as Subcontractor, certain portions of the work in connection with said Prime Contract, consisting of
Nbdifications and Inprovements to the Gettysburg Pike Toll Plaza on Contract No. 98-068-RX85-C
which Subcontract is hereby referred to and made a part hereof.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above bounden
Principal shall well and truly perform all the undertakings, covenants, terms, conditions, and agreements of said
Subcontract within the time provided therein and any extensions thereof that may be granted by the Obligee,
and during the life of any guaranty required under said Subcontract, and shall also well and truly perform all
the undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of
said Subcontract that may hereafter be made, and shall indemnify and save harmless said Obligee of and from
any and all loss, damage, and expense, including costs and attorney's fees, which the said Obligee may sustain
by reason of failure so to do, then this obligation shall be null and void; otherwise it shall remain in full force and
effect.
Bond No. 929378821
Form F5933
r
The said Surety agrees that no change, extension of time, alteration, addition, omission, or other
modification of the terms of either the said Subcontract or the said Prime Contract, or both, or in the said work
to be performed, or in the specifications, or in the plans, shall in anywise affect its obligation on this Bond, and it
does hereby waive notice of any such changes, extensions of time, alterations, additions, omissions, and other
modifications.
IN WITNESS WHEREOF, the above bounden parties have executed this instrument under their several
seals this day of , the name and corporate seal of each corporate
party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to
authority of its governing body,
PRINCIP.
W. G. Taint
SURETY:
Western Surety
SURETY COMPANY ADDRESS:
U.S. Steel Tower, 600 Grant Street, Suite 500
Street
Pittsburgh PA 15219
City State zip
412 1 562-4100
Phone
SURETY AGENT'S ADDRESS:
Marsh USA Inc.
Rosemarie Rodden
By ATTORNEY-IN-FACT
Agency Name
Six PPG Place, Suite 3W
Street
Pittsburgh PA
City State Zip
412 ) 552-5000
Phone
Western Surety Company
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT
Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
Christine A Hartung, Leslie L Rudat, Elena Zunic, Marjorie A Altemus, Wendy A Bright,
Rosemarie Rodden, Individually
of Pittsburgh, PA, its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds,
undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to
be hereto affixed on this 27th day of June, 2005.
Er WESTERN SURETY COMPANY
Z2
y\sf AV/' i
h 01?
Paul . Bruflat, Senior Vice President
State of South Dakota
County of Minnehaha ss
On this 27th day of June, 2005, before me personally came Paul T. Bruflat, to me known, who, being by me duly swom, did depose and say: that he
resides in the City of Sioux Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which
executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so
affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires
.r f D. KRELL I
November 30 2006 ; NOTARY PUBLIC I
J?f iV SOUTH DAKOTA SEAL I
f f
+'?yhtiti ti4?Yti lti Stitibti?sti?glh + D. Krell, No Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in
force, and further certify that the By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my name and affixed the seal of the said corporation this day of
WESTERN SURETY COMPANY
toRPCA4j :fie
?41 Ow' _
Form F4280-01-02 L. Nelson, Assistant Secretary
Authorizing By-Law
ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY
This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders
of the Company.
Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the
corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other
officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer
may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company.
The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the
corporation. The signature of any such officer and the corporate seal may be printed by facsimile.
--NOTICE
In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this disclosure
notice for bonds and certain insurance policies on which one or more of the Writing Companies
identified below is the surety or insurer.
To principals on bonds and insureds on certain insurance policies written by any one or more of
the following companies (collectively the "Writing Companies") as surety or insurer: Western
Surety Company, Universal Surety of America, Surety Bonding Company of America,
Continental Casualty Company, National Fire Insurance Company of Hartford, American
Casualty Company of Reading, PA, The Firemen's Insurance Company of Newark, NJ, and The
Continental Insurance Company.
DISCLOSURE OF PREMIUM
The premium attributable to coverage for terrorist acts certified under the Act was Zero Dollars
($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM
LOSSES
The United States will pay ninety percent (90%) of covered terrorism losses exceeding the
applicable surety/insurer deductible.
Form F7310
'
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cip
G.D. No. 2008-1117
W. Alan Torrance, Jr., Esquire
PA I.D. # 49592
DICKIE, MCCAMEY & CHILCOTE, P.C.
Firm #067
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402
(412) 281-7272 (Telephone)
(412) 392-5367 (Facsimile)
atorrance@dmclaw.com
ATTORNEYS FOR DEFENDANTS
HEMPT BROS., INC.,
Plaintiff,
V.
W. G. TOMKO, INC. and
WESTERN SURETY COMPANY,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2008-1117
JURY TRIAL DEMANDED
Defendants.
ENTRY OF APPEARANCE
TO: PROTHONOTARY
Kindly enter the appearance of W. Alan Torrance, Jr., Esquire and Dickie,
McCamey & Chilcote, P.C. on behalf of Defendants, W. G. Tomko, Inc. and Western
Surety Company.
Respectfully submitted,
DICKIE, MCCAMEY & CHILCOTE, P.C.
By:
W. Alan Torrance, Jr., Es ui
Attorneys for Defendants,
W. G. Tomko, Inc. and Western Surety Co.
G.D. No. 2008-1117
I
CERTIFICATE OF SERVICE
I, W. Alan Torrance, Jr., Esquire do hereby certify that a true and correct copy of
the foregoing Entry of Appearance has been served this 14th day of March, 2008 via
first class, U. S. Mail, postage prepaid, to all counsel of record as follows:
Michael L. Bangs, Esquire
429 South 18th Street
Camp Hill, PA 17011
Attorneys for Plaintiff
Dickie, McCamey & Chilcote, P.C.
B 0
Y:
W. Alan trance, Jr., sq ire -
Attorneys for Defendants
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2008-01117 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HEMPT BROS INC
VS
W G TOMKO INC ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
WESTERN SURETY COMPANY
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of ALLEGHENY
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On March 26th , 2008 , t
attached return from ALLEGHENY
s office was in receipt of the
Sheriff's Costs:
Docketing 6.00
Out of County 9.00
Surcharge 10.00
Dep Allegheny Co 75.00
100.00
03/26/2008
MICHAEL BANGS
Sworn and subscribe to before me
this day of
So answers:
R. Thomas Kline
Sheriff of Cumberland County
A. D.
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2008-01117 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HEMPT BROS INC
VS
W G TOMKO INC ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of WASHINGTON County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On March 26th , 2008 , this o
attached return from WASHINGTON
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep Washington Co 43.86
Postage 2.91
83.77 ?
03/26/2008
MICHAEL BANGS
Sworn and subscribe to before me
this day of
ice was in receipt of the
So answers:
R. Thomas Kline
Sheriff of Cumberland County
.?/?s f os ?
A. D.
In The Court of Common Pleas of Cumberland County, Pennsylvania
Hempt Bros Inc
vs.
W.G. Tomko Inc et al
SERVE: same No. 08-1117 civil
Now, February 27, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Washington County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Please mail return of service to Cumberland County Sheriff. Thank you.
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
-o
copy of the original
the contentk-thereof
So answers,
Sheriff of
Sworn and subscribed before
me this day of , 20
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
County, PA
20 , at o'clock M. served the
WASHINGTON COUNTY, PENNSYLVANIA
OFFICE OF THE SHERIFF
SAMUEL F. ROMANO
SHERIFF
JAMES B. DALESSANDRO
CHIEF DEPUTY
Court Docket #: 2008-1117
COURTHOUSE SQUARE
SUITE 303
100 WEST BEAU STREET
WASHINGTON, PA 15301
724-228-6840
FAx 724-223-4719
Sheriff File Number - 08001054
County of WASHINGTON, Commonwealth of PENNSYLVANIA
HEMPT BROS. INC.
vs
W.G. TOMKO INC.
Affidavit of Service
COMPLAINT
I hereby CERTIFY and RETURN that on 3/11/2008 at 1:15PM at 2559 ROUTE 88, FINLEYVILLE, PA 15332 the
within COMPLAINT, was served on W.G. TOMKO INC., the defendant named therein, in the following manner:
ALTERNATE PERSON
By delivering to and leaving with PETE PRITCHARD the OPERATIONS MANAGER to the defendant a true
copy thereof, a person over the age of eighteen. Said address was the BUSINESS of the defendant.
SERVICE ATTEMPTS
This is the first attempt at service
Fees Received from Attorney: MILEAGE ($18.36), POSTAGE ($1.00), FIRST DEFENDANT BASE COST ($24.50) Total Charges $43.86
Attorney Name: CUMBERLAND COUNTY SHERIFF, ONE COURTHOUSE SQUARE, CARLISLE, PA 17013
Affirmed & Subscribed to before
Me March 14, 2008
BRANDEN FRANKIE, Deputy Sheriff
C L?c,c?
Notary Public --
'? S riff of Washington County
My commission expires:
1
In The Court of Common`Pleas of Cumberland County, Pennsylvania
H,enpt Bros Inc ,
VS.
W.G. Tomko Inc et al
SERVE: Western Surety Company No. 08-1117 civil
Now, February 27, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Allegheny
deputation being made at the request and risk of the Plaintiff.
VVN
Please mail return of service to Cumberland County Sheriff. Thank you.
Affidavit of Service
Now, TL , 20 , at o'clock M. served the
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
So answers,
Sheriff o County, PA
Sworn and subscribed before
me this day of , 20
County to execute this Writ, this
Sheriff of Cumberland County, PA
COSTS
SERVICE $
MILEAGE
AFFIDAVIT
MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF
I.D. No. 41263
429 South 18t' Street
Camp Hill, PA 17011
(717) 730-7310
HEMPT BROS., INC., ) IN THE COURT OF COMMON PLEAS
Plaintiff ) OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs. )
NO. 2008-1117 CIVIL TERM
W. G. TOMKO, INC., and )
WESTERN SURETY COMPANY, ) CIVIL ACTION - LAW
Defendants ) JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY:
Please mark this case settled and discontinued.
Respectfully submitted,
Date:
MICHAEL L. BANGS
Attorney for Plaintiff
429 South 18th Street
Camp Hill, PA 17011
(717) 730-7310
Supreme Court ID #41263
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